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This Date In Legal History: March 16, 1994 -- Tonya Harding pleads guilty to conspiracy to hinder prosecution for trying to cover-up an attack on figure skating rival Nancy Kerrigan. Also, James Madison turns 253 today! |
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This Date In Legal History: March 16, 1994 -- Tonya Harding pleads guilty to conspiracy to hinder prosecution for trying to cover-up an attack on figure skating rival Nancy Kerrigan. Also, James Madison turns 253 today! |
I've considered anonymity throughout my blogging history, but I've ultimately decided against it because writing in my own name forces me to take due responsibility for my public remarks. Plus, in the unlikely event that I some day produce a truly original thought, credit would be nice. Anonymous or not, it's long been my view that blogging about matters (involving other peope) that are not explicitly public is a very bad idea. I'm always baffled by bloggers who underestimate the potential publicity of their online writing, and end up with some explaining to do to the unwitting subjects of their writing, like friends or coworkers. From Anonymous Lawyer, it looks like this may become an issue for associates and future lawyers who blog non-anonymously:
(Link from Tech Law Adviser.) In law student and lawyer circles, blogging appears to be relatively common. Unless and until law firms come up with express policies about their employees' blogging, bloggers would be wise to write nothing about their coworkers or their firm's clients without permission. To avoid unpleasant surprises, it might even be wise to make their firms aware that they blog--which I intend to do--just in case.
As to whether law-bloggers should take general legal positions that may be inconsistent with the interests of their employer's clients, I'm not sure what the protocol should be. Any thoughts?
Variety reports that Fox has a new reality show in the works -- all about lawyers!
[Fox] has given a eight-to-10-episode production commitment to the tentatively titled "The Partner," an hourlong skein in which a group of newly minted lawyers will battle each other to win a job as a partner in a major law firm...Contestants will be divided into two teams -- one made up of Ivy League grads, the other consisting of players who attended less prestigious schools. Each week, teams will compete by serving as prosecutors or defenders in mock trials inspired by actual cases. A jury of real people -- selected by the lawyers/contestants -- will determine the winner of each trial...
Fox and Rocket Science are in talks with several well-known lawyers about coming on board to serve in the Trump-like role as judge. Talks are also under way with several law firms about serving as the sponsoring firm for the show. Lawyers from the chosen firm will act as advisers to the two teams...
"Lawyers are so verbose, so opinionated and want to be on camera," [exec producer] Darnell said.
1. Lawyers, quick! Get your resumes into Fox before Johnnie Cochran gets there first!
2. The winner gets to become a partner?? Right away?? Is there any reputable law firm that would agree to that? How much partner-level work can this recent grad do, no matter how talented he or she is? No experience, no connections... and imagine the terrible press within the legal industry. "Yeah, they have that partner... from the reality show." That makes you sound really classy.
3. I can tell from that last quote that this show plans to go a long way to correct stereotypes about lawyers... right....
I never do this, but some things just bother me irrationally. I just sent the following e-mail to an executive at the Discovery Times television channel:
I feel silly taking the time to find your e-mail address on the Internet and write to you, but I just watched the hour-long program on Ronald Reagan's letters on your channel and enjoyed it very much -- but in the middle of the program there was an advertisement regarding "campaign essentials" that referred to John Tyler becoming President after *Benjamin* Harrison died in office. It wasn't Benjamin Harrison -- it was William Henry Harrison. Benjamin Harrison wasn't President until almost 50 years later. Thought you might appreciate knowing that slipped through the cracks.
The New York Times ought to know better -- or at least the people making the house ads for the upcoming programs on a cable channel part-owned by the Times. Not a big deal, but come on, this is 4th grade stuff. I just had to tell someone...! First Jayson Blair, now this...??
Since it appears to be the season to quote caselaw for its own sake (very funny, go read), I thought I'd point out what I consider to be a failure of inspired judicial discourse. Don't get me wrong--I love a good passage full of colorful musings and lyrical contemplations of justice and liberty, but this had me grimacing:
From Justice Jackson, in West Virginia Board of Education v. Barnette, 319 U.S. 624 (1943). I've been in law school nearly two years now--but no one bothered to tell me we have a constitutional constellation. And that some of the stars apparently swirl about, or something.
Clarke is not alone:
Brian Sheridan, President Clinton's outgoing assistant secretary of Defense for special operations and low intensity conflict, was astonished when his offers during the transition to bring the new Pentagon leadership up to speed on terrorism were brushed aside. "I offered to brief anyone, any time on any topic. Never took it up."
Even if one dismisses Sheridan's remarks as those of a political appointee, the same cannot be done for Don Kerrick. A three-star general, Kerrick had served at the end of the Clinton administration as deputy national security advisor, and he spent the final four months of his military career in the Bush White House. He sent a memo to the NSC's new leadership on "things you need to pay attention to." He wrote about Al Qaeda: "We are going to be struck again."
But he never heard back. "I don't think it was above the waterline. They were gambling nothing would happen," he said.
Go read the whole editorial.
I'm realizing that some of the most persuasive passages of judicial writing I've ever read tend to be the more commonly ridiculed and dismissed.
Yeah, I know, we've got rules to follow and precedents to heed and expectations to respect and social order to maintain. But the truth is, I feel like writers--including judges--are most in touch with justice when they sound like poets. If the law is our most serious literature, then my favorite authors are the lyricists.
Or maybe it's just that nearly two years of reading case law has left me incapable of really responding to anything less than florid. Shrug.
Andrew Sullivan is exactly right:
I made a similar point a while back at Ichiblog:
I don't think live and let live will get the job done. It doesn't overcome the basic thrust against gay marriage: the deeply engrained assumption that it's not really marriage if it's same sex. Presenting gay marriage as harmless cannot challenge an impetus that itself has virtually no consequentialist origin. What fence-sitters should hear more of are accounts that emphasize the love and livelihood of the bond, regardless of its gender composition, so they might see that everything beautful and valuable in traditional marriage can exist equally in same sex unions.
Sexuality has always been circumscribed by peculiar cultural prohibitions and cultural blessings of all sorts. I assume that what is left of the American reaction against same-sex sexuality is gradually on its way out, but to be sure, the message can't be about sex. It should be about the more basic and treasured values that have persuaded me, and many gay rights activists: acceptance and love. Isn't that what it's actually about, in the end?
Although I'm woefully behind in class reading, I'll make an effort to keep up with Professor Solum's Bookclub reading of Free Culture by Lawrence Lessig (download it here for free). Maybe others will join the blogospheric discussion.
Lessig writes (as Solum quotes):
Solum responds:
I myself was a bit uneasy with these sweeping contrasts between "anarchy" and "control," but I find myself more tolerant of the ambiguity than Solum. The notions of freedom Lessig contrasts are certainly not (yet) rigorous, but I think they adequately pinpoint the basic concerns of the anti-IP movement. The freedom so far articulated is the freedom that makes progress possible--open and flowing speech, expression, self-determination, and invention. There's no need to bring down the barrier that makes this beer mine, and not yours, but Lessig is setting us up to be critical of barriers that we don't, in fact, generally want, and that haven't, in fact, been part of our cultural traditions of creativity. Barriers that his book has so far suggested arise from big money and corrupt politics are apparently barriers that interfere with freedom as we like it. We just don't yet understand the change that's in progress, but
So unlike Solum, my hope is not so much that Lessig's writing will prove formally rigorous, but that the story he tells will indeed make the case that intellectual property, today, betrays widely shared values of freedom and progress. We shall see.
While doing some "research" for something else I was writing, I noticed that the AP newswire has an awful lot of silly headlines. Actually, only one I thought I was actually silly, and the rest I'm stretching to make a longer post. But anyway... just briefly, here's a few of their headlines / my invented stories. And, no, this has no real purpose.
Nurse Loses License in Hepatitis Outbreak
LINCOLN, Neb. (AP) -- The head nurse at a local hospital where the nation's largest hepatitis C outbreak began has lost her license in the commotion. As the outbreak spread throughout the hospital, the nurse was knocked to the ground, her wallet falling from her pocket and the contents getting strewn across the floor. When the activity died down, she could not find her license. She called the local licensing board and should have a new one by Wednesday.
Fire Ant Attacks Up In Nursing Homes
NEW ORLEANS (AP) -- South American ants are becoming an increasing danger for nursing home residents, as the aggressive non-native pests spread throughout the country -- excuse me, we mean South American aunts are becoming an increasing danger for nursing home residents, as the aggressive pests make their nieces and nephews eat more vegetables, do their homework, and give their aunt a nice big kiss on the lips.
Obesity Threatening Child Health Gains
WASHINGTON (AP) -- An obesity epidemic threatens to wipe out gains in children's health and safety over the past three decades. Except for weight gains, which it actually helps quite a bit.
Study: Drinking May Help Heart Patients
CHICAGO (AP) -- Drinking in moderation may help heart patients... forget all their problems and go enjoy life instead of worrying about their heart conditions.
This article investigates the question: Are video games art?
As the article points out, it's certainty true that video games often feature impressive feats of graphic design, and they usually adapt the story-telling form into an interactive medium (even if the stories are less than literary). But these observations are incomplete, and they place video games beside pop fiction and japanese animation, in the lesser light of comparison.
The best way to critique video games as cultural artifacts is to begin with their basic purpose: interactively engaging players. It's not very interesting to point out the visual beauty of graphics or the game-plot's similarities to narrative literature, but it is interesting to ask how those features are used to engage players. One might, for instance, note how many successful video games devote most their energy to creating ambience, suspending disbelief. Or how the host of online multiplayer games draws on the experience of actual social interaction--competition, alliance formation--to keep players coming back.
Making a fun game is really, really hard. Try picking up a deck of cards and coming up with something original and fun to do with it. Game design often deserves to be compared, in merit, to film and literature, but not merely because it does things that are similar to those other forms. Game design (especially video game design) is the art of engaging behavior and doling out just enough satisfaction to keep players hungry.
The Policy Review has an article titled "Burgers, Fries, and Lawyers" that serves as a nice primer for the "why we shouldn't be suing fast food companies camp, giving away its point of view early in the piece with the line, "Nor is it clear that the average fast food meal is significantly less nutritious than the average restaurant meal, or even the average home meal." Uh oh, I know what's coming next.
And in the paragraphs that follow, the author pretty much throws out every possible defense of the fast food companies, sensible and ridiculous, apparently just to see what sticks. If you throw out enough reasons... well, surely eventually you'll hit on one that everyone can agree on. No matter what you think about suing fast food companies, I think this article is one of the best examples of how to write a one-sided unbalanced advocacy piece that puts your credibility in doubt, even if everything you're saying is absolutely right. (Just to get my own prejudices out of the way, I don't actually know what I think about suing fast food companies -- my Torts professor thought it was a great idea, and our entire final exam was to write a paper saying why we agreed with him, and so I know the arguments... and I don't think it's ridiculous to say we should think about whether society is better or worse off with fast-food chains... but I'm not convinced there's a case to be made... in any event, on with my gentle mockery of this article...)
The author's first argument: lawyers say that poor and poorly-educated people are being seduced by fast food marketing, but in fact rich people are getting fatter faster. And the culprit, he says "data shows," is that people aren't eating more fast food than they used to; they're eating more snacks. Leading to this head-scratcher:
And in a fairly recent development, supermarket shoppers are pulling goodies off of store shelves and ripping into them at the stores before they even drive home. Consumers eat two to three times more goodies inside stores than at fast food restaurants.
Um... this sounds a little like conjecture to me. It may be true -- but is there really data showing that Americans are so desperate for food that they're ransacking supermarkets like never before -- and this is the cause (not the effect) of the nation's weight gain? It just sounds fishy to me (...perhaps Pepperidge Farm Goldfish-y...).
He then goes on to blame sedentary jobs, telecommuting (because then workers "may be sitting even closer to the refrigerator or cupboard"), and the decline in smoking ("has driven up cigarette prices and led smokers to switch from nicotine to calories").
Next defense: fast food is actually healthier than it used to be, and more customizable to people's tastes ("no mayo," etc). And fancy restaurants are serving unhealthy food too (expensive burgers made with rendered duck fat). And you want to blame portion sizes?
have these critics been to a movie theater lately, where popcorn containers look like bushel baskets? Or to fancy restaurants featuring all-you-can-eat Sunday buffets?
As we continue our journey through the catalog of defenses, fast food is good for America, because it's cheap. The price/protein gram is cheaper in a fast-food hamburger than if you made a burger yourself with supermarket meat, he says. And, no evidence that it's addictive like tobacco: no withdrawal symptoms if you stop eating at Burger King. And how can these companies be evil when "within 20 seconds of inquiring, each of the fast food chains mentioned in this paper produced nutritional content charts." They're unfairly maligned, I tell you! Unfair!
Finally, these lawsuits are bad for society because if fast food companies lose, we'll get:
1) lower wages for fast food employees; 2) lower stock prices for shareholders; 3) higher prices for consumers.
Are we done yet? Phew! How about a snappy conclusion:
Fast food restaurants hire and train hundreds of thousands of workers, attract investments from millions of middle-class citizens, and quench the hunger and thirst of tens of millions of satisfied patrons.
So stop these lawsuits! Because!!
Here's an article that says David Brooks ("Bobos in Paradise," NYT op-ed columnist, more) makes stuff up. Gross generalizations that aren't true, stuff like that. One brief clip from the long (but worth the read) article:
As I made my journey, it became increasingly hard to believe that Brooks ever left his home. "On my journeys to Franklin County, I set a goal: I was going to spend $20 on a restaurant meal. But although I ordered the most expensive thing on the menu -- steak au jus, slippery beef pot pie,' or whatever -- I always failed. I began asking people to direct me to the most expensive places in town. They would send me to Red Lobster or Applebee's," ... The easiest way to spend more than $20 on a meal in Franklin County is to visit the Mercersburg Inn, which boasts "turn-of-the-century elegance." I had a $50 prix-fixe dinner, with an entree of veal medallions, served with a lump-crab and artichoke tower, wild-rice pilaf and a sage-caper-cream sauce. Afterward, I asked the inn's proprietors, Walt and Sandy Filkowski, if they had seen Brooks's article. They laughed. After it was published in the Atlantic, the nearby Mercersburg Academy boarding school invited Brooks as part of its speaker series. He spent the night at the inn. "For breakfast I made a goat-cheese-and-sun-dried-tomato tart," Sandy said. "He said he just wanted scrambled eggs."
I absolutely agree that what Jayson Blair and Stephen Glass was wrong, but given everything we're hearing in the aftermath -- Jack Kelley, Rick Bragg, etc -- maybe we don't really need to know what's happening in the underbelly of American journalism. Maybe the stories are more fun to read even if they're made up.
Let it be declared that the Book Quiz is bunk. Such questions as "Odds or Evens?" landed me in the rather depressing diagnosis below. I know, bunkness is relative, and all Internet quizes are bunk to some degree or another. But I use "bunk" here to describe the special stripe of bunkness that really brings out the wrath of an otherwise tame blogger. Disclosure: this is all little more than my jealousy of PinkDreamPoppies, who gets to be my favorite novel, The Sound and the Fury, while I found Mrs. Dalloway to be just as opaque, but hardly as wonderful as To the Lighthouse, also by Virginia Woolf.
You're Mrs. Dalloway!
by Virginia Woolf
Your life seems utterly bland and normal to the casual observer, but
inside you are churning with a million tensions and worries. The company you surround
yourself with may be shallow, but their effects upon your reality are tremendously deep.
To stay above water, you must try to act like nothing's wrong, but you know that the
truth is catching up with you. You're not crazy, you're just a little unwell. But no
doctor can help you now.
Take the Book Quiz
at the Blue Pyramid.
There is no shortage of people offended by internet porn, but would relegating porn sites to .xxx domains offend the First Amendment? Mr. Ichiban thinks not.
Book Review
Trading Up: The New American Luxury, by Michael J. Silverstein and Neil Fiske
The authors of "Trading Up" should be forced to "Trade Down" and go live in a housing project for a couple of years. The book is a well-researched, well-written, nauseating celebration of the wasteful and overindulgent consumer culture in America. Victoria's Secret. Panera Bread. Williams-Sonoma. Belvedere Vodka. What these companies (and more) have in common is that they're of marginally higher quality than their competitors, but through manipulative branding that takes advantage of people's emotional needs and desires, they're able to raise their price points and "rocket" to huge profits off the demand curve. I don't dispute the book -- I think the authors have done a fantastic job identifying what it is companies like The Cheesecake Factory and Callaway Golf and Samuel Adams beer are doing: making high-quality products, and pitching them as lifestyle choices, as more than just "things you buy" but as part of what gives you an identity and what makes you feel good about your consumption -- but the tone of the book is kind of sickening; it's a celebration of consumer manipulation and of shrewd branding that makes people feel like consumer products can change their lives. "They are my little mechanical buddies;" "They are part of my family" -- these are people talking about their $2,000 Whirlpool washer and dryer. It's disturbing and sad -- but the book uses these quotes to illustrate a success story. Okay -- it is a success story. But not for society, and not for these people who, because of broader societal issues, are left to rely on their appliances for emotional support. Buying a $50 pair of tongs at Williams-Sonoma does not make me happy, and I think if it does make people happy, then we have things to worry about and shouldn't just be applauding Williams-Sonoma on making consumers believe that their neighbors will think less of them if they buy their tongs at K-Mart. I give the book credit for being awfully thought-provoking -- for getting me to think about these issues, and realize that there are certainly products I buy that I could just as easily buy the generic version of and it wouldn't make a difference. Shampoo comes to mind, actually, although it's an awfully negligible expense in the scheme of things -- not that what I buy is such a luxury brand, but still, I could save $2.00 if I bought the CVS bottle next to it, and I'm sure there's a negligible difference if any. But reading this book makes me want to never buy a brand name anything again, and scold people for reaching for the finely milled pet food when Walmart's Ol' Red will do just fine, and actually makes me angry that we live in a world where the thought of consumer products filling emotional needs is lauded and not shamefully disturbing.
I share Talkleft's concern about the suspicionless drug testing of students in Arkansas, and although I'd like the testing scheme to be blocked by the 4th Amendment, it looks like the Supreme Court has already pretty squarely decided the issue the other way in Veronia School District 47J v. Acton, 515 U.S. 646 (1995).
Apparently the Arkansas school's policy is "to randomly drug test students in grades 7-12 in extracurricular activities," which is pretty much the same testing scheme upheld in Veronia. The Veronia Court, however, seemed particularly impressed by the factually established drug problem at the school, and by supported contentions that school athletes were leaders of the drug culture. It's unclear whether the Arkansas school can make a similar showing.
The suit challenging this testing scheme looks to be playing up the fact that "[t]here are no scientific studies that show suspicionless testing of students in extracurricular activities works" and Talkleft points to an article suggesting that studies actually show that drug-testing is useless. Such factual demonstrations could be quite powerful in persuading the Court to rethink its inclusion of drug-testing in the "special needs" class of cases that get special leniency under the 4th Amendment.
Perhaps Professor Solum agrees with me that Professor Lessig's new book, Free Culture, available online for free (how else?) deserves an even more laudatory announcement than "Download of the Week." For anyone following the free culture movement, Lessig's book appears to be a must read. 20 pages into the digital manuscript, I'm already hooked. Download the pdf for free here.
Also in local religion-crime news, an East Texas man claimed in his confession to investigators that demonic possession caused him to molest his step-daughters.
The possession had occurred after Upshaw had prayed over and laid hands on a sexual deviant who was possessed, he said. Because he was not "prayed up" at the time, the demons transferred into his body, causing him to lust after his wife's elementary- and middle school-aged daughters.
Various reviews of Mel Gibson's movie The Passion made me decide that it wasn't for me. But now I have to be glad that it's out there; the Houston Chronicle reports:
Detectives say the death of a 19-year-old woman originally ruled a suicide has turned into a murder case after a repentant man who'd watched The Passion of the Christ confessed to killing her because she was carrying his child.Dan R. Leach supposedly wished to seek redemption. However, having committed pre-meditated homicide -- Murder One -- and admitted it (leaving himself without the negotiating tool of pleading guilty to avoid trial), Leach is likely to find himself on death row.
De Novo darling Dahlia Lithwick concludes her report on the Newdow oral arguments with,
The case is a mess because, whatever you may think about God or the pledge, if you really apply the case law and really think "God" means "God," then Newdow is right. But Newdow can't be right. Can he?
Why can't he? Indeed, there may even be a reason apart from the First Amendment to remove "under God" from the Pledge of Allegiance.
The phrase "under God" was added by Congress in 1954 as part of the Cold War campaign to distinguish America from the Soviet Union and China, at a time when the Iron Curtain already had fallen across Europe and the U.S. was striving to keep Communism out of Latin America, Africa, Asia and the Middle East. Catholicism was a strong force in Latin America, and Islam in the Middle East, so one aspect of Communism that American propaganda often emphasized was its compulsory atheism. Accept Communism, and you'd lose God.
Whether putting "In God We Trust" on our money, or replacing our national motto E Pluribus Unum with the same, actually aided the fight against leftist totalitarianism is debatable. At the time, President Eisenhower's pastor, Rev. George M. Docherty, sermonized that the pledge "could be the pledge of any country [...] I could hear little Moscovites repeat a similar pledge to their hammer-and-sickle flag with equal solemnity." Apparently American religiosity was what made us special.
But not anymore. Today the war on terrorism centers on fighting the Islamic world's slide into theocracy and religious war, not on fighting atheistic Communists. The murderers of 9/11 and the Bali and Madrid bombings give up their lives in the belief that they are serving God and that their sacrifice somehow will lead to a return of religious purity and an ideal world run on principles of Islamic fundamentalism.
It is precisely the forcing of religious doctrine -- the supposed Koranic commandment of women's second-class citizenship, the press toward "holy war" -- that the United States and other democracies must stand against. We are not trying to be holier than Taliban-run Afghanistan, or the current regimes of Saudi Arabia and Kuwait. With a few lamentable exceptions, we are not trying to argue that "our God is stronger than their God."
Instead, we are trying to show that the freedom to be veiled or unveiled, prayerful or atheistic, is as superior to coerced religion now as it was to coerced non-religion 50 years ago. We are not promoting Christianity or any other religion. We are promoting secular American values, the "liberty and justice" that are as absent from theocratic Iran as they are from communist North Korea. I disagree with the Bush Administration's way of doing it, but at least they have taken up the right cause.
So where do the hastily-injected invocations of God from the Cold War era fit into this new paradigm? People who want God to be a mandated aspect of public life can find much more of Him/Her/It in the oppressive regimes of the Middle East than they can in even the most religious parts of the U.S.
Perhaps we should take the opposite course. We can distinguish ourselves from the opposition, this time, not by declaring "in God we trust" (you certainly have to trust God a lot to fly into a building for Him), but "from many" -- races, religions, nationalities, languages, even sexual orientations and gender identifications -- "one" nation. Those who see this nation as not being "under God" should not be excluded from affirming their secular belief in "one nation, indivisible, with liberty and justice for all."
Link via Howard, like he needs our traffic: The Washington Post reports, "Georgia House Bans Genital Piercings." I'm sure that's not the first house to ban them.
Amendment sponsor Rep. Bill Heath, R-Bremen, was slack-jawed when told after the vote that some adults seek the piercings."What? I've never seen such a thing," Heath said. "I, uh, I wouldn't approve of anyone doing it. I don't think that's an appropriate thing to be doing."
The ban applies only to women, not to men. When asked to comment on the gender inequity, Heath said, "Oh, no, for men it's cool. I got mine pierced just last week," and then pulled down his pants. It is expected that if the case ends up at the Supreme Court, there will be at least three dissenters. Unnamed sources have informed us that Justice Ginsburg, Justice Scalia's wife, and Justice Rehnquist's illegitimate love child with Cher all have their genitals pierced.
I find that when speaking in public, a good way to make yourself less nervous is to imagine that everyone in the audience has his or her genitals pierced. It's also a good way to make yourself vomit.
I'm reading over the Newdow (pledge case) briefs now to get a feel for the standing arguments asserted--and once I review the ugly doctrine of standing covered a few weeks ago in Federal Courts, I'll probably post my thoughts on the justiciability of Newdow's claim. Until then, I thought it was interesting that Justice Rehnquist was quoted saying that the issues of the case:
Justice Souter seems to agree; the Washington Post writes "Justice David H. Souter said that Newdow could argue that his interest in his child 'is enough to give him personal standing.'"
I don't know the context of Rehnquist's statement (anyone find a trascript or audio file yet?) but if the Court accepts this view in the standing context, it looks like Newdow will have his case decided on the merits. Briefly, standing is an Article III requirement that focuses on the party's entitlement to have his case heard in a federal court. Newdow's basic challenge is to establish a "personal injury" that is "distinct and palpable," as opposed to merely abstract or conjectural. Newdow's lack of custody over his daughter is the basis of the defendants' arguments that he has no redressible right to be adjudicated, but if the Court thinks custody is irrelevant to his "personal injury" then it will be much easier for Newdow to establish an injury that is at least individual to him, as opposed to the host of atheists around the country who have no children in public schools where the pledge must be recited.
Unlearned Hand posted a lengthy meditation on "The Framers' Views of Restraining State Sovereignty" yesterday. While I haven't done enough originalist reading to speak authoritatively about WWMD (What Would Madison Do), I can add a historical reminder to the discussion.
The reminder is of the motivation for colonization. The Puritans left England in part to escape religious persecution by the state-supported Anglican Church. These English Calvinists in turn established a theocratic society in the Massachusetts Bay colony and expelled dissenters such as Anne Hutchinson and Roger Williams. The latter founded his own colony in Rhode Island, where he championed the cause of religious freedom and church-state separation. Other colonies, such as Quaker Pennsylvania, were founded as refuges for religious minorities.
In considering the arguments and compromises of the Constitutional Convention, one must remember that colonial history included fear of a national church such as the Church of England, but also colonies that were themselves sectarian, such as Massachusetts. (In fairness, the compulsory tendencies of the Bay colony enabled it to thrive in a hostile environment as well as fostering education; every colonist helped to support Harvard College, and a 1647 Act required "that every town of one hundred families or more should provide free common and grammar school instruction.")
So imagine the Convention. Nearly all delegates would have been united in the conviction that a central government, such as that of England, must not have the power to impose a single, unitary religion on all Americans, and this gave us "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." However, inhabitants of Massachusetts would have disagreed with those of Rhode Island as to whether state governments should be able to force their citizens
to make suitable provision, at their own Expense, for the institution of Public worship of God, and for the support and maintenance of public protestant teachers of piety, religion and morality, in all cases where such provision shall not be made voluntarily.Article III of the Massachussetts Constitution.
As the Constitution generally did when it could not split the difference on a controversy, it ignored the issue, which allowed the constitutions of the several states to decide it individually. The states came up with different results, depending on the temperament of the people and their leaders. Massachusetts had the above-quoted provision; Virginia, led by accused atheist Thomas Jefferson, had the Statute for Religious Freedom even before the national Constitution existed.
My best answers to the questions Unlearned Hand raises:
[W]hat was going to protect the people against the states?
The people had to decide for themselves how much protection they wanted against the state. Some opted for more protection than others. In general, the Framers seem to have thought that belief in and attendance at a particular church could not be made compulsory, but public behavior (such as Sunday laws) and monetary support for religious institutions could be regulated in accordance with religious precepts. This was the compromise between individual liberty and the demands of a democracy.
If the Framers really trusted state legislatures, would any of the various state constitutions have included provisions guaranteeing the freedom of speech, the right to a jury, the prohibition on capital punishment, as the Virginia Constitution does?
Except insofar as the Framers were leaders within their own states and thus many had a hand in their state constitutions, I don't see how the state constitutions reflect trust or a lack thereof by the Framers in state legislatures. As I said, people wrote their state constitutions based on how much protection from their state legislatures they felt was necessary.
For those who are wondering how Virginia manages to prohibit capital punishment while leading the country in per capita execution: Unlearned Hand appears to be referring to the 1776 draft constitution of Virginia, which says,
The General assembly shall have no power to pass any law inflicting death for any crime, excepting murder, & *such* those offences in the military service for which they shall think punishment by death absolutely necessary: and all capital punishments in other cases are hereby abolished.This provision is not in the present-day constitution of the Commonwealth.
Additionally, would it really make more sense to read the 1st Amendment as protecting the states against the federal government, and the Virginia Constitution as protecting the people against the state, rather than reading both as protections of individuals against two different sovereigns?
I agree that the latter reading, of both Constitutions as protections of individuals against federal and state governments respectively, is the sensible one.
Were the Framers as truly committed to individual liberties as our modern day heroic view suggests? Or were they more interested in guaranteeing state sovereignty, and less concerned with whether the states would use that power to infringe on the rights we so cherish today?
All the Framers were concerned about protecting individual rights from infringements by a powerful central government that they feared would tend to grow unaccountable to the people; otherwise they would not have broken from the Crown to begin with.
At the same time, they recognized that people in different states might have different views about the extent to which those rights needed to be protected from the theoretically closer and more accountable state governments. If it was important to the people of Massachusetts to have taxpayer support for religious instruction, the Framers were not going to get in their way.
And to the extent that some of the Framers (and here I should explicitly acknowledge that much of the confusion may be caused by the fact that many of the Framers held very different, often conflicting views and theories of government) were committed to individual rights, but failed to enact Federal Constitutional provisions protecting these rights against state interference, was it the result of simply having misguided views about the likelihood of state self-restraint? Was this caused by naivety? Knowledge of a need to compromise with other factions in the Constitutional Convention?
I don't think the Framers were misguided about state self-restraint, or naive, or compromising factionally in the sense that that word was used in that era. Rather, they recognized that the states were very different from one another -- hence the need for separation of power and a federalist government -- and that those differences had to be respected by the national Constitution, by not applying its protections to the state governments. The Framers knew that if the people of a state wanted a particular protection from their state government, they could write that into the state constitution, as many did.
After all, the express mission and purpose of the Constitutional Convention was to draw up a document to replace the Articles of Confederation, which had created too weak a central government. This new document had to be approved by all thirteen colonies, and the Bill of Rights was not added to it until some of the colonies, such as Rhode Island, protested that they wanted to see these protections in writing before signing on. Therefore I would consider the Bill of Rights to be even less of an "ideal" statement than the rest of the Constitution.
The New York Times has an article about a new Abercrombie & Fitch t-shirt for sale on the store's website (for $24.50, if you're interested) that features an outline of West Virginia and the slogan, "It's all relative in West Virginia." The Governor is mad because, according to the New York Times, "the shirt is a not-so-subtle play on the stereotype of West Virginia as a haven for incest." Ten bucks says the Governor ain't so thrilled about the wording of that line in the article either. Abercrombie & Fitch, just months after killing its quarterly full-color catalog amid protests it was actually a porn magazine, must be desperate for some new press. "It really hinders our ability to market the state," says the governor's director for strategic communications, who's probably thrilled to finally get his name in the paper. I'm not sure whether the shirt really hinders West Virginia as much as the fact it doesn't have any tourist attractions.
Next in the series for A&F, t-shirts with these slogans: "It smells like a toxic waste dump in New Jersey"; "Everyone's close to death in Florida"; and "Bill Clinton showed me his genitals in Arkansas." Yeah, yeah, you can probably do better.
Mozilla, Mozilla, Mozilla Firefox. That's the answer to Brad Delong's and Henry Farrell's [UPDATE: and Kevin Drum's] concerns about Internet Explorer's market dominance and consequent failure to improve at rates one would expect of a more competitive browser market.
Mozilla's Firefox has its problems (sometimes things are displayed funny, has some other funky bugs), but on the whole, I find it absolutely superior. Here's why:
2. Tabbed browsing. Perfect for keeping multiple URLs open without multiple windows.
3. Plugins and extensions. They come in all sorts, and new ones emerge continuously.
4. Customization. You can edit preferences with greater freedom, include bookmark folders in a toolbar, surf with different design themes.
5. The transition is effortless. Firefox will automatically import all your IE favorites.
To download, go here and click "Download Now" in the upper left corner. Totallly free of charge. (No, I do not work for them.)
"[Y]et these rupees haunted his mind, because he had been tricked about them, and allowed them to escape overseas, like so much of the wealth of India." -- A Passage to India
Those in and around St. Louis later this week might stop in at the Washington University School of Law, which is hosting the Imperialism, Art & Restitution Conference on March 25-26. I favor the colonized in preference to the imperialists, although the issue of Native American sacred sites is more complicated.
If the Elgin/ Parthenon marbles could be removed from Greece, then they can be returned, and ought to be; surely no one will argue that Greece, a fellow member with Britain in the European Union, host of the 2004 Olympics and my planned vacation spot, is unable to care for its own cultural legacy. Land, on the other hand, is not a movable good, and to tear down what has been built upon it is far more difficult than transferring stone and metal from one museum to another.
Julia Annas, the professor I had for an undergrad class on Plato, wrote and spoke a lot about happiness, and how Plato's vision of virtue could get you some. She always cited the self-help sections of bookstores as evidence that lots of people weren't living the good life, and then proceeded to take all comers who challenged pretty much anything Socrates said. As I like to remember it, she thwacked us with a Eudaimonia stick.
Now I see, via Matt Yglesias, that philosophy has made its way to something very like the self-help genre:
Having been a philosophy major, my first reaction is skepticism: philosophers get jobs? My second reaction, though, is skepticism: people use philosophy? The rest of my reactions, however, are a little hopeful.
I'd at least like to think that broadening one's self- and world-understanding at the abstract, lower conceptual level of philosophy is healthy. In my experience, however, people who learn philosophy don't typically start a fresh, happy life. They go to law school. See day three of our last symposium for a taste of what that means. (Admittedly, going to law school was, for me, starting a fresh, happy life.)
I'll confidently say, though, that studying philosophy has vastly enriched my appreciation for every kind of thinking and learning--especially when it's about the really important stuff, like what I ought to be doing. And I often think I ought to be reading more philosophy.
The Associated Press reports that Playboy Enterprises, Inc. will be in court today to press criminal charges against a French women's magazine that reproduced images from Playboy photo shoots. France's strict intellectual property law allows plaintiffs to choose between the civil and criminal courts, and those convicted theoretically can be imprisoned for up to two years.
Voici defends itself on several grounds: that the pictures were free publicity for Playboy, and may help rather than hurt its sales; that Voici's 70 percent female readership does not overlap greatly with Playboy's; that Playboy itself has used images from other publications; and that the images reproduced in Voici are too small to be a substitute for Playboy's full-page spreads.
In other international sex-industry news, prostitutes in Greece (which licenses the trade) successfully lobbied to cut the 200 meter distance from churches, schools and charities required by law to 100 meters, thus enabling them to get closer to the areas frequented by tourists.
Via Drudge, "Food colourings linked to hyperactivity, asthma, and even cancer, have been detected in chicken tikka massala, one of the UK’s favourite dishes..."
Trading standards officers launched an investigation, limited to chicken tikka massala...[One of the dyes used] can cause blurred vision and purple skin patches and is particularly hazardous for asthmatics and anyone allergic to aspirin...
[Another can cause] chromosome damage and kidney tumours as well as abdominal pain, hives, nausea and vomiting...
[Said the national curry chef of the year:] Colouring does not enhance the flavour of the food but a lot of people eat with their eyes.
Mostly just posted for my clever post title. I just don't know what to say, besides "an investigation, limited to chicken tikka massala" is not a line I ever thought I'd see in a news article anywhere. Imagine what the tandoori red color is doing to your insides. Post your favorite completely unnaturally colored foods in the comments. :)
Okay, anyone who cares, give me an up or down vote here, either in the comments or by e-mail re: the scramble each day in the upper right. I don't know if anyone likes them or not; I want to keep doing 'em if people like them, but if no one's paying them much attention I'll come up with something else.
Following are excerpts from Justice Scalia's memorandum, followed by comment from the professors.
The article doesn't say whether any of these professors ultimately think Scalia made the right, or wrong decision [edit: Alan in comments points out what I overlooked: "Here's White of UVA: 'On balance, I think that it was appropriate for Scalia to decide not to recuse himself' "], but many of the comments are quite critical, so I'm guessing some of them do, in fact, question Scalia's impartiality. Read the whole thing if you've been following the issue.
(Link via Houston's Clear Thinkers via Professor Yin.)
As you may have heard, suspicions are surfacing that certain anti-depressants could actually cause suicide, or suicide related bahavior.
Apparently various studies have been done, but what I'd like to know is whether suicide or "suicide-related behavior" is detected mostly during the first few weeks of taking the medication, when patients' brains are adjusting to the drug. And it's certainly worth knowing how "suicidal" patients were before starting on medication. A hypothesis worth testing would be: "Seriously depressed persons, before taking medication, are too fatigued and hopeless to take any action in response to their condition; but during the early medication adjustment stage, some depressed people may find their energy restored, but not their suicidal feelings, thus increasing the chance that action will be taken."
I'm no psychiatrist, but it sounds like a worthwhile question to answer.
It took me a little while, but I just realized why the post title below ("Staying In and Dropping Out and Worth a Post? and Maybe Not") made sense to me, but probably just looks odd to anyone not living inside my head.
Anyway, last week was the law school parody show here, a musical that pokes fun at law school life and professors and students that I helped write but, as one of eight writers, am probably not to blame for all that much. But I did contribute the lyrics to a parody song off of The Vapors' "Turning Japanese" (called "Learning Legalese" -- I can't take credit for the idea/title, but the lyrics are mostly my doing), and that post title is awfully similar to one of the lines of the parody song, and falls completely in rhythm. I posted this on my solo blog last week, but if I've piqued your interest, keep reading:
"Learning Legalese," to the tune of The Vapors' "Turning Japanese"
My eyes are bleeding, from all this reading
I wish the casebooks were not twelve inches thick
All this dissenting, is unrelenting
I need a study guide -- and I need it quick!
It's got me throwing up and laying down and staying in; I'm failing out.
I'm learning legalese, I think I'm learning legalese, I really hope so
(learning legalese, I think I'm learning legalese, I really hope so)
Meeting of the minds, retainer, eminent domain, right of assumpsit
Lawyer-client priv’lege, discharge, automatic stay, habeas corpus
Affidavit, deposition, amicus curiae, jurisidiction!
I'm a beginner, books should be thinner
I kicked the tax code and I fractured my toe
Although I'm gifted, this can't be lifted
I need an outline for this outline -- I know!
Must get these books to class, I need my Mom, to help me haul them all around (big fat woman walks on stage -- which never happened in the show... maybe this alone is why the song failed to inspire!?!?!)
I'm learning legalese, I think I'm learning legalese, I really hope so
(learning legalese, I think I'm learning legalese, I really hope so)
Arbitration, breach of contract, fraudulent conveyance, prima facie
Prosecution, statutory, stay of execution, sui juris
12-b-6 dismissal, joint and several, three-pronged test, fee simple transfer
No words with less than fourteen letters
No teachers speak a language I understand
No one told me Latin would be necessary
No one told me law school would be quite this scary ...
No one... That’s why
I'm learning legalese, I think I'm learning legalese, I really think so, think so, think so
(learning legalese, I think I'm learning legalese, I really think so)
Learning legalese, I think I'm learning legalese, I really think so
(learning legalese, I think I'm learning legalese, I really think so)
Scheherazade Fowler, who contributed to the symposium last week, links to us in a post where she responds to a search engine inquiry asking, "Why should I stay in law school" that found her website.
She credits the symposium with pointing out that there's a difference between being in law school and being a lawyer. I think that's fair. At minimum, it showed that lawyers do different stuff -- teach, practice, write, and (from one commenter) judge -- and that law school doesn't necessarily prepare people all that completely for being a lawyer, if they go into practice.
If I was contemplating dropping out of law school (which I'm not), I suppose what would talk me out of it would be seeing that light at the end of the tunnel (not that one): someone who's doing something I wish I could end up doing, who happens to have a law degree. But, if I really wanted to drop out, I suppose I'd look for someone who's doing something I wish I could end up doing, who doesn't have a law degree. Or, even better, who dropped out of law school.
Actually, that's made me curious. A quick Google search finds me nothing comprehensive, but these interesting results:
Al Gore dropped out of law school.
Paul Simon dropped out of law school.
The writer/director of "Two Weeks Notice" and "Miss Congeniality" dropped out of law school.
"Adam dropped out of law school to follow his heart. He landed at the Teva Learning Center, a program in Western Connecticut that teaches the integration of Judaism, Ecology and Environmental Activism."
and, finally:
"Anne dropped out of law school, renounced all of her material goods and went to live with her parents at the nudist colony."
That last one -- I kid you not -- is from a law school exam hypothetical. I don't know if that makes it funnier or less funny.
Anyway, for anyone thinking about it: you probably shouldn't drop out of law school unless you've really got something better to do. All that money and time down the drain -- at least if you stick it out you get a degree that has some value. Just my two cents. I dunno.
Commenting on Nick's post regarding Scalia's recusal refusal, Brian says,
I think Scalia's incredulity is focused at the Sierra Club's relative lack of legal citation to case law in fleshing out the range of the statute. Rather, as he points out, the main thrust seems to revolve around newspaper articles.
I'm not saying the statute has some mystical extra-textual meaning, however, it's fair to say that the ethical governance of the judiciary is more complex and intricate than what the average Joe's opinion is on Scalia's impartiality. In other words, there's a context to the statute that most laymen don't consider -- a context that is provided by legal precedent. It looks like the Sierra Club, realizing it didn't have legal precedent on its side, tried to dump the interpretation of the statute into the court of public opinion.Yes, the Sierra Club was citing more to popular opinion than to case law (though as Lithwick notes, "A bit unfair, perhaps, to blame the Sierra Club for the dearth of Supreme Court case law in an area that has been reserved for secret, individual Supreme Court decision"). But isn't that part of what "reasonable" means even in a legal context? The "reasonable man" is really just what the average sane person is like, not the person well-versed in legal precedents and the ways of Washington.
As for whether Justice Antonin Scalia can decide the case impartially, the best point he made was that he also is friends with a lawyer for the Sierra Club. If his friendships with people in high places are problematic, then that one ought to be as well.
Except -- that lawyer's reputation isn't really on the line. The point at which I disagree with Scalia is that I do think Vice President Richard Cheney's rep is on the line to a much greater extent, and thus this is less of a bloodless X v. Y case than Scalia would like to think.
The best example of X v. Y would be if Scalia were friends with Ashcroft, and the ACLU tried to challenge Scalia's sitting on the latest round of U.S. Attorney General Upholding Congressional Legislation v. ACLU. Of course, the ACLU wouldn't bother with that challenge, because they know Ashcroft's job requires him to defend the law, just as Janet Reno's did. The Attorney General, whether Republican or Democrat, continues to do that work even if he or she privately thinks the law is wrong.
That's not the Cheney scenario, however. This is the "Cheney Energy Task Force," not a committee that a vice president traditionally oversees as part of his job as vice president. There was no "Gore Energy Task Force."
On page six of the memo, Justice Scalia implies that the lawsuit would continue even with a different person in the vice president's office, just as the ACLU lawsuit continues with Ashcroft replacing Reno. I find that an implausible suggestion. Does anyone really believe that if Bush leaves office, his Democratic replacement's VP will maintain the secrecy of the task force's records? Without the maintenance of secrecy, the lawsuit disappears.
Moreover, a substantial part of the concern about the place of energy industry executives on the task force is due to Cheney's history as one such executive, having been the CEO of Halliburton. Unlike theoretical Republican replacements in the Bush VP slot such as Colin Powell, Cheney is already distrusted by some environmentalists because of his own private-sector resume, without even counting his actions in public service. A possible implication of his having relied on energy exectives in determining national policy is that he has let his pre-existing bias toward that industry outweigh other considerations.
In the end, however, I go back to agreeing with Scalia that when truly uncertain, a SCOTUS justice should prefer staying on the Court, to ensure that there is no 4-4 decision. I suppose he could have invited Ginsburg on the duck hunt to avoid that possibility, thus making a split decision 4-3, but this trip sounded like one for the boys -- Scalia took his son and son-in-law, without their wives.
By way of the Head Heeb, an article on Senator John Kerry's wife as "An 'African' First Lady for the US?" Jonathan draws the conclusion,"Mozambique-born Teresa Heinz Kerry can never be the United States' first African-American first lady," but I'm not sure the case is so open-and-shut.
A similar difficulty with labels comes up when considering other famous white Americans of African origin, like Dave Matthews and Charlize Theron, both born and raised in South Africa. Although Mrs. Kerry's lack of interest in maintain a connection to Mozambique lessens her claim to be African, Matthews at least returns frequently to his native country and uses it as a source for his music and business. What description other than "South African-American" would be appropriate?
Though I'm reluctant to admit it, this may be an argument in favor of using "black" to describe Americans whose slave ancestors were taken from unknown nations. On the other hand, perhaps the distinction can be maintained if those who were born in Africa specified the country of birth, while American-born people of African descent continue to use the all-encompassing "African-American." So Teresa Heinz Kerry can be our first "Mozambique-American first lady."
While the Constitution of India, like that of many post-colonial nations, borrows several aspects of the U.S. Constitution, it contains peculiar twists of its own that permit New Delhi to take actions that would be much more challenged in Washington, D.C. One such action is the Indian government's routine book-banning.
Salman Rushdie lived in hiding for years after the 1988 publication of The Satanic Verses because his apostasy brought an Iranian fatwa, or death sentence, down on his head. The fatwa has been revoked officially, and The Satanic Verses is being quietly released in several countries that previously had no publisher willing to associate with the book.
At the time, India had -- and has -- one of the largest Muslim populations in the world, and thus was a non-Islamic nation that still had to contend with the ire of many citizens at what they perceived as blasphemy against the prophet Muhammad. Rioting over the book preceded even the fatwa, and the national government banned it before its Indian publication.
Rushdie was permitted to visit India in 2000, but The Satanic Verses cannot be sold legally, although black-market (and probably non-royalty-paying) copies abound. Nor is it an exception; the latest controversy is over a work of nonfiction.
Maharashtra's home minister and state NCP president R. R. Patil has warned that a serious law and order situation could develop in the state vis-a-vis American scholar James Laine’s controversial book Shivaji: Hindu king in Islamic India.After an initial reluctance to back this censorship, Prime Minister Atal Bihari Vajpayee reversed and declared the federal government's support for the state's decision.
Even as various Hindu leaders puff themselves in indignation at any slights to a historical hero, the main concern in most acts of censorship is not the offense to a particular official's sense of propriety, but the chances that it will lead to "a serious law and order situation," i.e. violence. At least sixty people were injured and one killed during The Satanic Verses riots, and the radicals have not gotten more peaceful in the succeeding years.
An editorial by a retired policeman, published in 2000 as India debated allowing a controversial filmmaker to make a movie that portrays a custom of Indian society negatively, effectively explains why a nominally secular and free-speech-protecting nation has so much censorship:
The vast majority of literary journals have during the previous quarter century repeatedly criticised the administration for not respecting the fundamental rights of freedom of speech and expression, guaranteed under Article 19(a) of the Constitution. It appears that very few have bothered to read the proviso in Article 19(2), which reads as follows:Scholars of comparative law might note that India directly amended its constitution in 1951 and 1963 to include these demurrals. The U.S. Constitution has no such exceptions in its text; their existence in the doctrines of "fighting words" and libel law have been built by jurisprudence."Nothing in sub-clause (a) of clause (1) shall affect the operation of any law, or prevent the state from enacting any law, in so far as any such law imposes reasonable restrictions on the exercise of the right, conferred by the said sub-clause in the interests of the sovereignty and integrity of India, the security of the state, friendly relations with foreign powers, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence."
Despite Supreme Court rulings that say the rights to free speech and press are not absolute, legal bans on books and movies face a major hurdle in the First Amendment. The prima facie assumption is that there is serious literary, artistic, political or scientific value in these works, and the more challenging they are to the established conventions of religion and history, the more value they are likely to have.
In volatile countries, however -- where a disputed election like Bush v. Gore would have led to rioting, not just grumbling -- the importance of free speech has to contend with the importance of maintaining stability. Although I am inclined to oppose all censorship, I also would not want to underestimate the probability of a work that would be protected in America being a lighted match in India.